First Amendment Retaliation Claim by Virginia Tech Player Who Didn't Kneel for "Unity Statement" Can Proceed

From Hening v. Adair, decided Friday by Judge Thomas Cullen (W.D. Va.):

Plaintiff Kiersten Hening, a former member of the Virginia Tech women's soccer team, filed this suit under 42 U.S.C. § 1983 against her former coach, Charles "Chugger" Adair. Specifically, Hening alleges that, after she refused to kneel in support of social-justice initiatives, including Black Lives Matter ("BLM"), prior to the team's 2020 season opener against the University of Virginia ("UVA"), Adair retaliated against her in violation of the First Amendment. According to Hening, as a direct result of her refusal to kneel while a "Unity Statement" was read over the loudspeakers, Adair berated her at halftime in front of her teammates, and again at a film-review session the following week, for "bitching and moaning" and "doing [her] own thing."

{On September 3, 2020, the Atlantic Coast Conference's ("ACC") Committee for Racial and Social Justice announced that, in addition to creating an ACC Unity Symbol and implementing mandatory "diversity and inclusion training for student-athletes" focused on "anti-racism," a Unity Statement would be read before every ACC event. This Unity Statement provided: "We, the ACC, are committed to seeing each other as equals, supporting each other, and treating each other with respect and dignity at all times, recognizing that our differences don't divide us, but they make us stronger." As this Unity Statement was read prior to the UVA game, all but three of the players and coaches from both teams kneeled in an apparent show of support. Hening and two of her teammates declined to kneel.}

Adair, on the other hand, claims that he was unaware until after the UVA game that Hening had declined to take a knee and that his vocal criticism of Hening at halftime and the following week—during which he never directly mentioned the Unity Statement or her refusal to kneel—was based solely on her poor play. Hening, who had been a major on-field contributor for two years prior to the 2020 season, also asserts that Adair removed her from the starting lineup for the next two games and drastically reduced her playing time in those games because she had engaged in this protected First Amendment activity. As a result, Hening resigned from the team after the third game of the season….

It is well-established that the First Amendment's protection of freedom of speech includes "both the right to speak freely and the right to refrain from speaking at all." As a necessary corollary to protect that fundamental right, the "right of free speech includes … the right to be free from retaliation by a public official for the exercise of that right." To establish a claim for First Amendment retaliation, Hening must put forth sufficient evidence that: (1) she engaged in protected First Amendment activity; (2) Adair took some action that adversely affected her First Amendment rights; and (3) there was a causal relationship between her protected activity and Adair's actions.

For purposes of his motion for summary judgment, Adair does not challenge that Hening engaged in protected First Amendment activity by declining to kneel prior to the UVA game. But he argues that Hening has not presented a triable claim of retaliation because the undisputed evidence demonstrates that he did not take any action that adversely affected her First Amendment rights, and that, even if she has, there is no causal connection between her refusal to kneel and his subsequent coaching decisions….

The court concludes that there is sufficient evidence in the record supporting Hening's claim that Adair's actions, whatever his motives, adversely affected her First Amendment rights. In making this determination, the court applies an objective standard, asking whether "the defendant's allegedly retaliatory conduct would likely deter 'a person of ordinary firmness' from the exercise of First Amendment rights." In so doing, the court can consider how the alleged retaliation personally affected the plaintiff. But "[w]hile the plaintiff's actual response to the retaliatory conduct provides some evidence of the tendency of that conduct to chill First Amendment activity, it is not dispositive." Moreover, "[n]ot all retaliatory conduct tends to chill First Amendment activity[,] … and a plaintiff seeking to recover for retaliation must show that the defendant's conduct resulted in something more than a 'de minimis inconvenience' to her exercise of First Amendment rights."

A reasonable jury could find that Adair's conduct towards his former player constituted an adverse action for purposes of her First Amendment retaliation claim. Adair contends that his halftime criticism and comments at the later film-review session were justified based on Hening's poor play and were unrelated to her pregame refusal to kneel. But as Hening points out, this argument misses the mark because it impermissibly assumes that Adair's version of the facts—specifically, that his criticism was motivated by Hening's purported on-field struggles rather than her pregame actions—is true. At the summary judgment stage, the court cannot make this credibility determination in Adair's favor; its determination is solely within the province of the jury.

Moreover, Adair's argument conflates adverse action with causation. Whatever his motivations, the court has no trouble concluding that Adair's conduct towards Hening—publicly chastising her, removing her from the starting lineup, and reducing her playing time—would tend to chill a person of ordinary firmness's exercise of her First Amendment rights….

{Although Hening was not on an athletic scholarship and there is no evidence that she had higher aspirations in her chosen sport, the type of retaliatory conduct alleged here would certainly have a chilling effect on college athletes generally, especially those who rely on scholarships to offset (or cover) their academic expenses or those that recognize that playing time and visibility will affect their future prospects in the sport or otherwise. For example, a line on one's résumé that reads "4-year state Division I soccer player" is preferable to "member of Division I soccer team."}

But to prevail on her retaliation claim, Hening must also establish the requisite causal connection between her refusal to take a knee—i.e., her protected First Amendment activity—and Adair's alleged adverse actions towards her. This is a high hurdle, and "[i]t is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury." … [T]he alleged retaliatory motive must be a "but-for" cause, meaning that the plaintiff must prove that the defendant would not have taken the adverse actions against her absent his retaliatory motive….

Genuine issues of material fact preclude the court from granting summary judgment on this score. As a threshold matter, Adair claims that there is no evidence that he was even aware that Hening stood during the Unity Statement when he harshly criticized her at halftime, but this is belied by the record. Still photographs from the game film clearly depict Adair, who is kneeling on the sideline, looking in Henning's direction as she remained standing ….

Adair also contends that Hening's theory of causation is, at bottom, based on rank speculation and self-serving conclusions, both of which, he argues, are insufficient to defeat summary judgment. But a fair review of the record indicates that Hening's case is based on more than supposition; indeed, ample circumstantial evidence undergirds her claim and gives rise to genuine issues of material fact about Adair's true motives and actions. The close temporal proximity between the pregame incident and Adair's halftime tirade against his starting defender (approximately 45 minutes) suggests some causal connection between these two events. And the close temporal proximity between the other alleged adverse actions (harshly criticizing Hening's performance during a film session and removing her from the starting lineup for the Clemson and UNC games) occurred within two weeks of Hening's refusal to kneel before the UVA game.

Hening also points to evidence showing that, in the late summer of 2020, the Virginia Tech women's soccer team, like many organizations and groups, was divided over whether and how to publicly support various social-justice initiatives (including BLM) in the aftermath of the murder of George Floyd. Indeed, an apparent rift had developed over this issue between a large group of team members (mainly freshmen) who openly embraced BLM and a few upperclassmen who did not, causing the freshmen to complain directly to Adair about what they perceived as racism.

Adair later addressed this apparent rift over BLM in at least two team meetings during the preseason. Prior to one, he texted his coaching staff that "some discussion … regarding Black Lives Matter and racial … injustice" had already occurred and that some members of the team "were open and speaking[,] which is great," but that "some others made side comments later on that struck a nerve with other people." In off-the-record comments to ACC Network broadcasters prior to the season (which were overheard by a Virginia Tech sports information official), Adair lamented this divide and his team's lack of consensus on how to support social-justice initiatives. All of this suggests that this apparent BLM- and social-justice divide was far more significant to Adair at the time than he would have the court believe today.

Hening suggests that the "side" of this issue that Adair considered "open" and "great" was the pro-BLM side, and that the small group making "side comments later on that struck a nerve" was the anti-BLM contingent with which she aligned. Although no direct evidence supports this assertion, there is circumstantial evidence from which a reasonable jury could infer it. At a team meeting the following day, Adair encouraged his players to reach a consensus on how to show support for social justice, at one point suggesting that they wear special warm-up jerseys. Immediately after that team meeting, Adair allegedly made snide remarks about the family of one of his players' preference for "All Lives Matter" as opposed to "Black Lives Matter."

The student manager who overheard Adair make these comments to the other coaches immediately reported it to the small group of players who were opposed to supporting BLM publicly. And it was no secret among the players and coaching staff that Hening was an outspoken conservative and supporter of former President Donald Trump. Macaulay Soto, the Director of Operations for the women's soccer team and a BLM supporter, recalled that Hening "was the only one who consistently posted a lot of [conservative] things on her social media." The evidence of Adair's apparent views on this issue (as reflected in his alleged criticism of "All Lives Matter" supporters) and Hening's well-known conservative leanings and lack of support for BLM further support an inference that Adair had a retaliatory motive when he criticized, and later benched, Hening for refusing to kneel during the Unity Statement.

Even though this evidence establishes genuine issues of material fact as to Adair's motives, he would still be entitled to summary judgment if he could prove "by a preponderance of the evidence that [he] would have reached the same decision … even in the absence of the protected conduct." In other words, if the weight of the evidence backs his assertion that he would have chastised and benched Hening for her poor play against UVA regardless of her decision not to kneel, then he would still be entitled to summary judgment. But the weight of the evidence does not cut in Adair's favor, at least at this stage.

The record establishes that Hening was a stalwart defender on the women's team for two years prior to the 2020 season. She started nearly 40 games prior to the UVA game, including all but three as a freshman, and typically played most of the minutes of those games. But Adair benched her after the UVA game and drastically reduced her playing time. As a freshman, Hening averaged 76 minutes of playing time; as a sophomore, nearly 88. But during the Clemson game, Hening only played 29 minutes, and, at the UNC game, just 5. Ultimately, Adair may convince a jury that this coaching decision was based solely on Hening's poor play during the UVA game, but the court, viewing the evidence in the light most favorable to Hening, cannot reach that conclusion as a matter of law.

Similarly, Adair contends that Hening's circumstantial evidence of his alleged retaliatory motives is of no consequence because he did not take any action to retaliate against the two or three other women who joined her in not taking a knee before the UVA game. In other words, Adair claims that Hening's retaliation claim fails as a matter of law because she is unable to point to a similarly situated comparator who suffered the same fate.

Again, his argument misses the mark. As the Fourth Circuit has recognized (albeit in the context of Title VII), once a plaintiff offers circumstantial evidence of a discriminatory motive, "the case must be decided by the trier of fact and cannot be resolved on summary judgment." This is not to say that Adair's apparent non-retaliation against other players would not be relevant or admissible at trial to show that his actions towards Hening were not retaliatory; they likely would be, and the jury might find this evidence compelling. "But at the summary-judgment stage, these additional facts and attendant inferences in favor [of the defendant] do not vitiate the genuine questions of material fact" that Hening, for the reasons explained above, has established to support her claim. "The issue—at this stage of the proceeding—is whether those additional facts permit the court to draw a determinative inference [in Adair's] favor that [his] motives were not discriminatory." On this mixed record, the court concludes that they do not, and that Adair is not entitled to summary judgment.